Platform Terms & Conditions
These TERMS & CONDITIONS (these “Terms”), including any Orders (as defined herein), addenda, exhibits and schedules hereto (collectively, this “Agreement”), sets forth the terms and conditions pursuant to which DroneSense, Inc., a Delaware corporation (“DroneSense”), shall provide the Products and Services (defined herein) and User access to and use of the Products and Services. These terms are between DroneSense and the DroneSense customer who has purchased the Products and Services as set forth on the applicable Order (“Customer” or “you”) and are made as of the date set forth on such Order. DroneSense may, at its discretion, update these Terms at any time. You can access and review the most current version of these Terms at the URL for this page, by clicking on the “Terms & Conditions” link within the Platform, or as otherwise made available by DroneSense. The most current version of these Terms will be effective when posted and will replace and supersede any prior versions posted.
1. CERTAIN DEFINITIONS.
1.1. “Affiliate” means, with respect to any entity, any other entity that controls, is controlled by or is under common control with such entity, for so long as such control exists. For the purposes of this definition, the word “control” (including, with correlative meaning, the terms “controlled by” or “under the common control with”) means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such entity, whether by the ownership of more than fifty percent (50%) of the voting stock of such entity, or by contract or other means.
1.2. “API” means any proprietary application programming interface made accessible by DroneSense that enables Customer and its Users to, among other things, (i) insert or retrieve Customer Data (as defined herein) via the Platform or On-Premise Offering, and/or (ii) insert or retrieve Customer Data from any approved Integrations via the Platform or On-Premise Offering.
1.3. “Anonymized Data” means Customer Data that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify Customer or any User as the source of such data.
1.4. “Credentials” means any User accounts, passwords, access URLs, and other authentication credentials associated with use of the Platform and/or On-Premise Offering by Customers and Users.
1.5. “Customer Facilities” means Credentials and any account, network, database, hardware, system or other facility within a Customer’s custody or control.
1.6. “Customer Hardware” means any hardware used in conjunction with the Products and Services, such as, but not limited to, unmanned aerial systems.
1.7. “Documentation” means user manuals and other technical documentation provided by DroneSense and related to the Products and Services.
1.8. “Hardware” means the goods, supplies, parts, assemblies or other items to be furnished by DroneSense to Customer including raw materials, components, and intermediate assemblies of such items, each as specified on the Order.
1.9. “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos, and other source identifiers; trade secrets; software, databases, and data; and all other intellectual property and industrial designs.
1.10. “Integrations” means any API integration of the Platform or On-Premise Offering with Customer Facilities or Third Party Offerings authorized by DroneSense which enables Customer to transfer Customer Data between the Platform or On-Premise Offering and Customer Facilities or Third Party Offerings.
1.11. “Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs, and trojan horses.
1.12. "Manufacturer” means the entity that creates or supplies the Hardware.
1.13. “Mobile Apps” means mobile software applications DroneSense may make available for access to and use of certain components of the Platform or On-Premise Offering.
1.14. “On-Premise Offering” means DroneSense’s proprietary object code offering branded as “DroneSense” and any applicable API’s, any Reports and Reports Templates, and other related software, content and services, including all and all such services and software labeled as alpha, beta, pre-release, trial, preview, early-access, limited-access, or otherwise, and including any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any Documentation, add-ons, templates, and sample data sets as provided by DroneSense.
1.15. “Order” means each order form, quote, or purchase order entered into in writing by a Customer and DroneSense which makes reference to these Terms or to which these Terms are attached and which specifies the Products and Services, including any Fees, number of authorized Users, and any additional terms applicable to a Customer’s access to and use of such Products and Services.
1.16 “Platform” means DroneSense’s proprietary software as a service offering branded as “DroneSense,” the websites at https://www.dronesense.com, https://web.dronesense.com/, the Platform Elements (as defined herein), and any applicable domains and subdomains, any APIs, any Mobile Apps, any Reports and Reports Templates, and other related software, content and services, including all and all such services and software labeled as alpha, beta, pre-release, trial, preview, early-access, limited-access, or otherwise, and including any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any Documentation, add-ons, templates, and sample data sets as provided by DroneSense.
1.17. “Products and Services” means the Professional Services, Hardware, On-Premise Offering and/or Platform.
1.18. “Professional Services” means any integration, training, maintenance, geographic information systems (GIS), technical writing, policy auditing and other professional services provided by DroneSense as specified in an Order.
1.19. “Public Safety Incident” means an adverse event, near-miss, or other event in a public setting resulting from unsafe conditions that could potentially endanger the safety and security of the public, including but not limited to hazardous conditions, natural disaster or security threats.
1.20. “Reports” means certain analytical and/or consolidated reports and insights generated by the Platform and On-Premise Offering with respect to Customer Data and otherwise.
1.21. “Reports Templates” means DroneSense’s proprietary algorithms, models and other data analytics, and other templates and tools which are provided by DroneSense to Customer and Users via the Platform and On-Premise Offering.
1.22. “Subscription” means a Platform or On Premise Offering subscription for the applicable Subscription Term and on the terms set forth in this Agreement and the applicable Order.
1.23. “Subscription Term” means the duration of a Subscription as indicated on the applicable Order.
1.24. “Third Party Offerings” means products and services delivered or performed by third parties independently of the Products and Services or other online, web-based applicable subscription services, and any associate offline products provided by third parties, that interoperate with the Products and Services.
1.25. “Users” means employees and contractors of Customer who are authorized by Customer to access and use the Products and Services.
2. PLATFORM AND ON-PREMISE OFFERING.
2.1. Provision of Platform. During the Subscription Term of the applicable Subscription and subject to the terms and conditions set forth herein, including without limitation Customer’s payment of all Fees due hereunder and any restrictions or parameters set forth in this Agreement and the applicable Order, if Customer has purchased a Subscription to the Platform as indicated on an applicable Order, Customer and its Users shall have a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access and internally use the Platform solely within Customer Facilities and for its intended purpose. DroneSense will use commercially reasonable efforts to provide Customer with access to its Platform consistent with its Service Level Agreement as set forth on DroneSense’s website.
2.2. Provision of On-Premise Offering. During the Subscription Term of the applicable Subscription and subject to the terms and conditions set forth herein and the applicable Order, including without limitation Customer’s payment of all Fees due hereunder and any restrictions or parameters set forth in this Agreement, if Customer has purchased a Subscription to the On-Premise Offering as indicated on an applicable Order, Customer and its Users shall have a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access, download and internally use the On-Premise Offering solely within Customer Facilities and for its intended purpose.
2.3. Users. Users shall abide by the terms of this Agreement and all applicable Orders. Any breach by a User will be deemed to be a breach by Customer. Customer shall be solely responsible for managing and administering User accounts and Credentials, including issuing usernames and passwords, provided that DroneSense may terminate or suspend any User’s access to the Platform or On-Premise Offering for any breach without notice.
2.4. Reports. Subject to Customer’s and User’s compliance with the terms and conditions of this Agreement and each Order, DroneSense hereby grants Customer a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use, display and create derivative works of the Reports and the Reports Templates (solely to the extent incorporated into the Reports) solely for Customer’s internal purposes. Reports may be made available in such formats as determined in DroneSense’s sole discretion, which may include GeoJSON, GPX or KML.
2.5. Mobile Apps. DroneSense may offer Mobile Apps. User access to and use of Mobile Apps is subject to and governed by this Agreement. If any Mobile App is downloaded by a User from the iTunes App Store, Google Play, or any similar service (an “App Store”), use of such Mobile App is further subject to compliance in all material respects with the terms and conditions of the applicable usage rules set forth by such App Store. This Agreement is between Customer and DroneSense only, and not with the proprietor of any App Store (a “Third Party Proprietor”), and no Third Party Proprietor is responsible for Mobile Apps and the contents thereof; however, any Third Party Proprietor and its subsidiaries are third-party beneficiaries of this Agreement with respect to Mobile Apps.
3. HARDWARE.
3.1. Provision of Hardware. DroneSense shall, upon the terms and conditions set forth in these Terms, sell to Customer, and Customer shall purchase from DroneSense, the Hardware in the quantities specified in the Order, if any, as specified in the Order for the Fees stated therein. All sales of Hardware to Customer are final sales and Customer has no right to cancel the Order or return Hardware purchased under this Agreement, except as stated herein. Customer may not reschedule or modify an Order unless Customer makes a request in writing and such request is approved in writing by an authorized DroneSense representative. DroneSense has sole discretion in deciding whether to accept or decline such a request. Acceptance by DroneSense of a Customer request to reschedule or modify an Order may be subject to reasonable conditions, including, without limitation, Customer paying: (a) increased fees for the subject Hardware; (b) rescheduling or modification charges; (c) DroneSense overhead; (d) unearned discounts (billback); (e) reasonable lost profits; and (f) other amounts DroneSense requires. For any Order that is modified, Customer shall have no rights in or to partially completed Hardware or Hardware components.
3.2. Shipping. The Hardware shipment to Customer will be FOB Origin from DroneSense or the Manufacture’s facility. DroneSense may elect to ship by any method DroneSense deems most economical or convenient and charge Customer for the shipping costs it incurs. DroneSense shall not be liable for any delays, loss or damage in transit. DroneSense shall use commercially reasonable effort to ship the Hardware in a prompt manner, although shipment is subject to availability and Manufacturer performance. Shipping dates are approximate and DroneSense is not obligated to ship by a particular date. DroneSense reserves the right to make partial shipments, ship in installments, delay or allocate shipments. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under an Order. The quantity of any installment of Hardware as recorded by DroneSense on dispatch is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. DroneSense shall not be liable for any non-delivery of Hardware (even if caused by negligence) unless Customer gives written notice to DroneSense of the non-delivery within two (2) days of the date when the Hardware would in the ordinary course of events have been delivered. Any liability of DroneSense for non-delivery of the Hardware shall be limited to delivering the DroneSense Hardware within a reasonable time or adjusting the invoice respecting such Hardware to reflect the actual quantity delivered.
3.3. Title and Risk of Loss. Title to the Hardware shall pass from DroneSense to Customer upon full and complete payment the Fees for such Hardware. Risk of loss or damage shall pass to Customer upon delivery by DroneSense of the Hardware to a common carried for shipment. Customer shall protect, defend, indemnify and hold DroneSense harmless from and against any loss or damage to the Hardware while it is in transit and thereafter REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT, CONCURRENT OR GROSS NEGLIGENCE) OF DRONESENSE OR THE MANUFACTURER OR ANY OTHER FAULT ATTRIBUTABLE TO DRONESENSE OR THE MANUFACTURER, INCLUDING STRICT LIABILITY.
3.4. Security Interest. DroneSense reserves a purchase money security interest and lien in any Hardware sold to Customer and Customer's proceeds there from, in the amount of the Fees for such Hardware. In a default by Customer of any obligation to DroneSense, DroneSense shall have the right, in addition to all other rights and remedies, to repossess the Hardware sold to Customer physically, or, if the functionality exists, to remotely disable or deactivate the Hardware sold to Customer for which payment is not timely received. Customer agrees to make the Hardware available to DroneSense for repossession. In addition, upon default by Customer, DroneSense has the right to withhold no-charge support services from Customer, including, without limitation, access to engineering support. The security interest will be satisfied by payment in full. A copy of the invoice and/or these Terms may be filed with appropriate authorities at any time as a financing statement to further perfect this security interest and Customer agrees to execute financing statements and other instruments as requested by DroneSense to perfect and/or provide notice of this security interest. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
3.5. Hardware Inspection and Rejection. Customer shall inspect the Hardware within one (1) day of delivery ("Inspection Period"). Customer will be deemed to have accepted the Hardware unless it notifies DroneSense in writing of any Nonconforming Hardware during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by DroneSense. “Nonconforming Hardware” means only the following: (i) the product shipped is different from the DroneSense Hardware specified in the applicable Order; or (ii) the label or packaging incorrectly identifies its contents. If Customer timely notifies DroneSense of any Nonconforming Hardware, DroneSense shall, in its sole discretion, determine if such Hardware is in fact Nonconforming Hardware, and if so: (i) replace such Nonconforming Hardware with conforming Hardware; or (ii) credit or refund the applicable portion of the price for such Nonconforming Hardware. Customer shall ship, at its expense and risk of loss, the Nonconforming Hardware to the location specified in writing by DroneSense. If, after receiving Customer's shipment of Nonconforming Hardware, DroneSense exercises its option to replace the Nonconforming Hardware, DroneSense shall ship to Customer, at Customer's expense and risk of loss, the replacement Hardware to the delivery address stated in the Order. Customer acknowledges and agrees that the remedies set forth in this Section are Customer's exclusive remedies against DroneSense for the delivery of Nonconforming Hardware.
3.6. Hardware Training, Support and Maintenance. DroneSense will provide limited initial remote training to Customers on the use of the Hardware. DroneSense will provide on-site training if purchased by Customer in the applicable Order as Professional Services. Customer is solely responsible for ensuring that all of its personnel is adequately trained with respect to the use of the Hardware. DroneSense will provide limited remote support to Customers for the use of the Hardware during the Term as Professional Services. If DroneSense is unable to provide the support required by Customer, DroneSense will connect Customer with the Manufacturer. DroneSense will provide maintenance services to Customers as stated in the applicable Order as Professional Services for the Fees stated therein.
3.7. Manufacturer Terms and Conditions; Information Disclosure. As a condition of purchasing the Hardware, Customer is required to agree to, and be legally bound by, the terms and conditions presented by the Manufacturer and which are included or referenced in the applicable Order. Customer hereby consents to the disclosure of Customer’s personal information, including without limitation the name, email and address of Customer and its representatives, to the Manufacturers for the purpose of enabling or assisting the Manufacturer to supply and deliver the Hardware purchased by Customer pursuant to this Agreement.
4. OTHER SERVICES.
4.1. Professional Services.
(a) DroneSense shall provide Customer with the Professional Services set forth in each applicable Order. Each such Order will be governed by the terms and conditions of this Agreement and will specify, among other terms the parties deem relevant: (a) a description of the Professional Services that DroneSense will provide; (b) the schedule for performance; and (c) the fees that Customer will pay and the schedule for payment. DroneSense shall be permitted to subcontract such Professional Services subject to mutual agreement by the parties.
(b) In connection with DroneSense’s provision of Professional Services, Customer shall provide all reasonable and timely cooperation, information and inputs, perform any tasks, fulfill any necessary responsibilities, and provide any necessary assistance to DroneSense in connection with DroneSense’s provision of the Professional Services (“Customer Responsibilities”), which may include information, documents, equipment, services, access, facilities and support regarding Customer Facilities. Customer understands that DroneSense’s performance of the Professional Services may be dependent upon Customer’s timely and effective performance of Customer Responsibilities hereunder and timely decisions and approvals by Customer, as may be required. DroneSense shall be entitled to rely on all decisions and approvals of Customer in connection with the Professional Services. DroneSense shall not be liable for any delay caused by Customer’s failure to comply with this Section. If DroneSense informs Customer of such failure, and Customer does not cure such failure within thirty (30) days, then (a) DroneSense may terminate any incomplete Professional Services; and (b) in addition to any fees due hereunder, Customer will pay all actual costs incurred by DroneSense in connection with the cancelled Professional Services, provided that DroneSense will make commercially reasonable efforts to mitigate such costs, which will not exceed the total fees applicable to such Professional Services.
(c) Initial training for the Platform is available online and should be scheduled directly with DroneSense. DroneSense will provide on-site training if purchased by Customer in the applicable Order. Customer is solely responsible for ensuring that all of its Users are adequately trained with respect to use of the Products and Services. Such training services shall be deemed to be Professional Services hereunder.
4.2. Hosting, System Updates and Maintenance Services. Customer acknowledges that DroneSense may host any or all elements and/or components of the Platform (each, a “Platform Element”), or elements of Platform Elements, using its own infrastructure or it may engage a third party to host on its behalf. DroneSense currently utilizes Amazon Web Services (AWS) for hosting certain Platform Elements. DroneSense may provide periodic updates and bug fixes to the Platform, any Platform Elements or the On-Premise Offering at its discretion during the Subscription Term (“Maintenance Services”), and DroneSense may, in its sole discretion, make any changes that it deems necessary or useful to maintain or enhance the quality or delivery of the Platform or the On-Premise Offering, or to comply with applicable law. Any such updates or fixes will be considered a part of the Platform or On-Premise Offering, as applicable, and software owned by DroneSense. DroneSense does not warrant that all errors or defects can or need to be corrected. Maintenance Services may include feature changes for update or enhancement releases of the Platform, Platform Elements and On-Premise Offering. Customer agrees to promptly install any updates and bug fixes to the On-Premise Offering that DroneSense provides to it. With respect to the Platform, scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by DroneSense. During such time, certain Platform Elements and their interaction with other Platform Elements may be unavailable and shall not be considered Downtime as provided in the SLA. Emergency maintenance may be required at other times in the event of system failure.
4.3. Technical Support. During the Subscription Term, DroneSense will provide Customer with support regarding the Platform as provided in the SLA, found at www.dronesense.com, by phone at 833-DS-HELP-5, (833) 374-3575, or by email at support@dronesense.com.
4.4. DroneSense Response Teams. DroneSense Response Teams (each, a “DSRT”) provides Customers support in the event of a Public Safety Incident. Customer can request DSRT support during or following a Public Safety Incident. DroneSense shall respond to calls made by Customer to DroneSense’s 24/7 support line or submission of a DSRT request form, both of which are provided on the DroneSense website (“DSRT Request”), DroneSense will use commercially reasonable efforts to respond to a DSRT Request within twenty-four (24) hours and to deploy a DSRT within in the time frame set forth in the DSRT Request; provided, however, that DroneSense has no obligation to deploy a DSRT in response to any DSRT Request and may decide, in its sole discretion, when deployment, if any, is appropriate. When a DSRT Request is submitted, DroneSense and Customer shall work together in good faith to define the DSRT mission and support scope including the duration of the mission and DSRT hardware needs (“Response Scope”). Prior to deployment of the DSRT and based on the agreed-upon Response Scope, DroneSense and Customer shall mutually agree in writing upon the applicable fees, costs and expenses reimbursements for the deployment.
The DSRT role and capabilities may include:
(a) providing on-site training to other first responders that have not previously used the Platform or On-Premise Offering, as applicable;
(b) troubleshooting any software issues that occur and help identify and resolve networking issues;
(c) assistance in validating and updating correct firmware for agency drones and controllers;
(d) assistance establishing shared mission codes and coordinating multiple agencies flying collaboratively;
(e) coordinating and building map layers to ensure safe operating space for multiple agency operations;
(f) acting as a single point of contact for relaying any DroneSense-related issues back to the DroneSense support operation center;
(g) assisting with after action reports, equipment use logs and personnel accounts; and
(h) providing operational and logistical support.
5. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES.
5.1. Customer Responsibilities.
(a) Customer Assistance. Customer shall provide DroneSense with all information, materials and assistance as reasonably required for DroneSense to activate and operate the applicable Platform Elements and/or On-Premise Offering, as applicable, for Customer and its Users pursuant to this Agreement.
(b) Technical Requirements. Except as otherwise provided in an Order, Customer and its Users shall be solely responsible for obtaining, configuring, and maintaining any hardware, network connectivity and third-party software required to access the Platform or On-Premise Offering, including Customer Facilities, computers, operating systems, web browsers and storage devices. In connection with the On-Premise Offering, Customer agrees that it must implement and maintain at all times the minimum requirements communicated to Customer by DroneSense from time to time in connection with its use of the On-Premise Offering and that DroneSense shall not be responsible for any errors or defects, or inability for Customer to use and/or access all of the functionalities of the On-Premise Offering as a result of Customer failing to meet such minimum requirements.
(c) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities and will ensure that no third parties access or use any of Customer’s Credentials or Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Platform or On-Premise Offering through use of Customer’s Credentials or Customer Facilities, Customer shall immediately give written notice to DroneSense of such breach and make reasonable efforts to eliminate it. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Platform and On-Premise Offering through Customer’s Credentials and Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care. Furthermore, Customer assumes all risk and liability associated with sharing any Customer Data, and/or Credentials with any third party.
5.2. Compliance with Applicable Law. Customer and each User uses the Products and Services, as applicable, at its own initiative and risk and is responsible for compliance with any applicable laws, including, without limitation, any federal, state or local employment and/or tax laws. WITHOUT LIMITING THE FOREGOING, CUSTOMER AND ITS USERS ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY AND ALL LAWS AND REGULATIONS PERTAINING TO THE OPERATION AND MAINTENANCE OF THE HARDWARE, ANY AIRCRAFT AND/OR CUSTOMER HARDWARE (AS DEFINED HEREIN). DroneSense may also impose limits on the use or access to the Platform or On-Premise Offering as required by law. Customer, and not DroneSense, is responsible for the safety and security of the Hardware, any aircraft and/or Customer Hardware operations carried out by Customer or its Users.
5.3. Third Party Offerings and Integrations. Customer acknowledges that: (a) one or more Platform Elements may contain Third Party Offerings and Customer's rights in the Third Party Offerings comprised by software are governed by and subject to the terms and conditions set forth in the applicable third party license(s) also set forth therein and Customer acknowledges and agrees to fully comply with such terms and conditions; and (b) enabling certain Integrations will require Customer to register and create accounts with various Third Party Offerings, or to link and enable such Integrations with existing Third Party Offerings with respect to which Customer may already have an account, and that Customer shall remain solely responsible for its and its Users’ conduct with respect to such Integrations and any Credentials, authorizations, permissions, Customer Data, or other information or actions required or permitted in connection therewith. IN ADDITION TO ANY DISCLAIMERS SET FORTH IN SUCH TERMS AND CONDITIONS, TO THE FULLEST EXTENT PERMITTED UNDER LAW AND ANY APPLICABLE THIRD PARTY LICENSES OR OTHER THIRD PARTY AGREEMENTS, THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL APPLY TO DRONESENSE AND ITS LICENSORS WITH RESPECT TO ALL INTEGRATIONS AND THIRD PARTY OFFERINGS.
5.4. Restrictions. Customer may not, and will not permit any third party to: (a) rent, lease, lend, sell, redistribute, reproduce, or sublicense the Platform, any Platform Element, or the On-Premise Offering; (b) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, create derivative works of the Products and Services or any part thereof; (c) use the Products or Services in violation of any law or regulation; (d) access or use the Products or Services for any non-permitted purpose (including for any competitive analysis, commercial, professional, or other for-profit purpose); (e) use or offer any functionality of the Platform, any Platform Element or the On-Premise Offering on a service provider, service bureau, hosted, software as a service or time sharing basis; (f) provide or permit other individuals or entities to create Internet “links” to the Platform, any Platform Element or the On-Premise Offering, or to “frame” or “mirror” the Platform, any Platform Element of the On-Premise Offering on any other server, or wireless or Internet-based device; (g) disclose to any third party the results of any benchmark tests or other evaluation of the Platform, any Platform Element or the On-Premise Offering; (h) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Products or Services; (i) interfere with or disrupt servers or networks connected to any website through which the Platform is provided; (j) use the Platform, any Platform Element or the On-Premise Offering to collect or store personal data about any person or entity in violation of this Agreement or any data privacy or security laws; (k) use the Products or Services or any Confidential Information of DroneSense to build a similar or competitive product or service; (l) use the Platform, any Platform Element or the On-Premise Offering to transmit any Malicious Code; or (m) use the Products or Services for any illegal, unauthorized or otherwise improper purposes. Customer shall not exploit the Products or Services in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity. Customer will comply with reasonable storage guidelines, each as established from time to time by DroneSense. DroneSense reserves the right to limit Customer's storage of Customer Data (as defined herein) if Customer exceeds reasonable amounts.
6. INTELLECTUAL PROPERTY.
6.1. Reservation of Rights. The Platform and the On-Premise Offering are licensed, not sold, and all Intellectual Property rights in and to the Products and Services shall remain the sole and exclusive property of DroneSense and/or its licensors. Except as expressly stated in this Agreement, DroneSense does not grant Customer any rights to DroneSense’s Intellectual Property. For the avoidance of doubt, DroneSense shall own all Reports Templates.
6.2. Hardware. The sale of Hardware does not purport to convey any license concerning any Intellectual Property rights of DroneSense or the Manufacturer regarding any invention of DroneSense, the Manufacturer or others. DroneSense reserves all rights to all Intellectual Property used or embodied in the Hardware. No manufacture to Customer's specifications entails ownership by or conveyance to Customer of any property right in the Hardware or any invention or product. DroneSense or the Manufacturer is deemed to own all tools, and other equipment whether provided by Customer or made by DroneSense or the Manufacturer for the purpose of manufacturing any Hardware for the benefit of Customer.
6.3. Feedback. If Customer or any of its Users submits to DroneSense comments, suggestions, or other feedback regarding the Products or Services, excluding any Customer Confidential Information, (“Feedback”), Customer agrees that DroneSense will be free to use such Feedback for product improvement without accounting or obligation.
6.4. Rights in Customer Data. As between DroneSense and Customer, Customer shall own all right, title, and interest in and to any data that is collected by DroneSense from Customer and its Users, and in connection with their use of the Products and Services, as applicable (“Customer Data”). Customer hereby grants and agrees to grant to DroneSense a non-exclusive, non-transferable (except in connection with Section 15.8.), sublicensable, royalty free, fully paid-up license to use such Customer Data in order to exercise its rights and perform its obligations stated herein and as necessary to monitor and improve the Products and Services. DroneSense shall have the right to use Anonymized Data to collect, develop, create, extract, or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze Anonymized Data. DroneSense shall be the sole and exclusive owner of the Anonymized Data. Customer shall have sole responsibility to back up Customer Data in its possession or under its control.
6.5. Privacy Policy. In addition to this Agreement, the DroneSense Privacy Policy at https://www.dronesense.com/privacy-policy (“Privacy Policy”) applies to how DroneSense may process information provided in connection with the use of the Products and Services. Customer acknowledges and agrees that by accessing or using the Products and Services, DroneSense may receive certain information about Customer and its Users, including personal data, as set forth in the Privacy Policy, and DroneSense may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.
7. PAYMENT TERMS.
7.1. Fees. Applicable fees and pricing for the Subscription are set forth on the Order (“Fees”). Subscription renewal pricing is specified in Section 13.2 and 13.3.
7.2. Payment Terms. If nothing in the Order is stated to the contrary, or no such pricing terms are provided, all Fees shall be due and payable by Customer within thirty (30) days after the date of invoice. Customer hereby agrees to pay DroneSense all Fees by issuing a check to DroneSense or using a credit card or other electronic payment method on file with Customer's account. DroneSense may provide access to various payment processors (each, a “Payment Processor”, e.g., Stripe or PayPal). Customer hereby (i) acknowledges and agrees that DroneSense may use any such Payment Processor in connection with its collection of Fees, (ii) acknowledges and agrees that DroneSense will not be responsible for any payments or charges as a result of Customer’s failure to provide up-to-date and accurate information to any such Payment Processor, (iii) authorizes DroneSense and its Payment Processors to charge all Fees to Customer’s chosen payment method, and (iv) agrees to abide by such Payment Processor’s then-current terms of use and to pay any associated processing fees. Except as expressly set forth herein, all Fees are non-refundable and are payable in U.S. dollars. Any Fees remaining unpaid for more than fifteen (15) days past their due date shall accrue interest at a rate of one and one-half (1.5%) percent per month or the highest rate allowed by law, whichever is lower. DroneSense may also (at its discretion and in addition to other remedies it may have) suspend or revoke the Professional Services, and Customer's and its Users' access to the Platform or On-Premise Offering if any invoice remains unpaid for more than fifteen (15) days and condition delivery of Hardware on payment terms shorter than those specified in this Section. To the extent permitted under applicable law, Customer shall pay all costs incurred by DroneSense for the collection of unpaid invoices including, but not limited to, reasonable collections agency and attorney's fees.
7.3. Taxes. The Fees set forth on the Order do not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties (“Taxes”), and any such Taxes shall be assumed and paid by the Customer except those taxes based on the net income of DroneSense. DroneSense shall have no liability for any taxes owed by Customer or its Users as a result of the Customer's use of the Products and Services. If DroneSense has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, DroneSense will invoice Customer and Customer will pay such amount. If Customer is a tax-exempt, or equivalent, entity, Customer shall provide a copy of the tax-exemption certificate to DroneSense upon execution of the initial Order.
7.4. No Setoff. Customer shall not, and acknowledges that it will have no right, under these Terms, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to DroneSense, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by DroneSense, whether relating to breach or non-performance hereunder or any other agreement between Customer, and DroneSense, or otherwise.
8. WARRANTIES AND DISCLAIMER.
8.1. Mutual Warranties. Each party represents that: (i) it is a public entity or a corporation that is duly organized, validly existing, and in good standing in the jurisdiction in which it is incorporated; (ii) that it has the requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement and that it will do so in accordance with the terms set forth herein; and (iii) acknowledges that this Agreement is subject to applicable law. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
8.2. Disclaimer. THE FOREGOING CONSTITUTES DRONESENSE'S ONLY WARRANTIES CONCERNING THIS AGREEMENT AND THE PRODUCTS AND SERVICES, AND THE FOREGOING IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. CUSTOMER SHALL NOT AND HAS NO AUTHORITY TO MAKE ANY WARRANTY ON BEHALF OF DRONESENSE TO ANY USER CONCERNING THE PRODUCTS AND SERVICES. THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS.
9. Customer Warranties. Customer represents that it is in compliance with, and shall continue to comply with, all applicable laws, regulations, and ordinances in connection with the purchase and use of the Products and Services. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and to safely operate the Products and Services. Customer shall comply with all Documentation, instructions and warnings relating to the Products and Services when using, repairing, storing or otherwise dealing with the Products and Services. Customer represents that it is currently in compliance with, and shall continue to comply with, the regulations of the OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) and any statute, executive order, or other governmental action relating thereto.
10. CONFIDENTIALITY.
10.1. Definition. “Confidential Information” means any proprietary information, Customer information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed by a disclosing party hereunder that is either: (a) indicated to be confidential or proprietary; or (b) of which a reasonable person would assume to be confidential given the circumstances surrounding disclosure. Except as otherwise provided for herein, DroneSense’s Confidential Information includes, without limitation, the Platform, each Platform Element, the On-Premise Offering, the Professional Services, the Documentation, any DroneSense software, and the terms and conditions of this Agreement. Customer’s Confidential Information includes, without limitation, the Customer Data.
10.2. Exclusions. Notwithstanding Subsection 10.1, Confidential Information shall not include information which: (a) is now available or becomes available to the public without breach of this Agreement by the receiving party; (b) is lawfully obtained by the receiving party from a third party without a duty of confidentiality; (c) is known to the receiving party prior to such disclosure as evidenced by documents in the receiving party’s possession immediately prior to the time of disclosure; or (d) is, at any time, developed by the receiving party independent of and without reference to any of the receiving party’s Confidential Information.
10.3. Non-Use and Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing party's Confidential Information: (a) for the intended business purpose related to this Agreement; or (b) as expressly set forth herein. Both parties shall protect Confidential Information from disclosure and misuse by using the same degree of care as for their own confidential information of like importance but in no event less than a standard of reasonable care. It is understood that Confidential Information shall remain the sole property of the disclosing party unless otherwise expressly set forth herein.
10.4. Disclosure Required by Law. Notwithstanding Subsection 10.3 above, a receiving party may disclose the other party's Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must: (a) give the disclosing party prompt written notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure; and (b) limit such disclosure to the greatest extent possible.
11. LIMITATION OF LIABILITY AND REMEDIES.
11.1. NO LIABILITY FOR THIRD PARTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRONESENSE SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO THIRD-PARTY PRODUCTS OR SERVICES, INCLUDING THE THIRD PARTY OFFERINGS, THE HARDWARE AND CUSTOMER HARDWARE. CUSTOMER'S SOLE REMEDIES WITH RESPECT THERETO SHALL BE BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY.
11.2. DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR LIABILITIES RESULTING FROM A BREACH OF SECTION 5 (“CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES”) OR SECTION 10 (“CONFIDENTIALITY”), A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION12, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
11.3. MAXIMUM LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITIES RESULTING FROM A BREACH OF SECTIONS 5 (“CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES”), 7 (“PAYMENT TERMS”), AND 10 (“CONFIDENTIALITY”), A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) EXCEED, IN THE AGGREGATE, THE FEES RECEIVED BY DRONESENSE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. IN NO EVENT SHALL DRONESENSE BE LIABLE FOR ANY DAMAGES CAUSED BY CUSTOMER’S OPERATION OR MAINTENANCE, OR LACK THEREOF, OF ANY HARDWARE OR CUSTOMER HARDWARE (INCLUDING WITHOUT LIMITATION ANY DRONES).
11.4. Allocation of Risk. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and voluntary allocation between them of the risk associated with Customer’s use of the Products and Services, and, but for this provision, neither party would have entered into the Agreement. The Fees hereunder reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.
12. INDEMNIFICATION.
12.1. By DroneSense. DroneSense shall defend Customer from and against any claim, demand, investigation, or action in any form brought by a third party (“Claim”) against Customer, and indemnify and hold Customer harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts' fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, (“Loss”) in each case to the extent arising from or related to any allegation that any Platform Element infringes, misappropriates, or otherwise violates any U.S. patent, copyright, or trade secret. Notwithstanding the foregoing, DroneSense will have no liability for any infringement claim of any kind if the claim results from: (a) modifications made other than by DroneSense; (b) unauthorized or unlicensed use; (c) any Third Party Offerings; (d) the combination, operation or use of any Platform Element with equipment, devices or software not supplied by DroneSense, to the extent such a claim would have been avoided if the Platform Element was not used in such combination; (e) use of information, materials, content, Customer Data, or marks provided to DroneSense; or (f) or compliance by DroneSense with designs, plans or specifications furnished by or on behalf of Customer.
12.2. By Customer. Customer shall defend DroneSense and its Affiliates, officers, directors, employees, agents, successors and permitted assigns (each a "DroneSense Indemnified Party") from and against any Claim against a DroneSense Indemnified Party, and indemnify and hold each DroneSense Indemnified Party harmless from any Loss in each case to the extent arising from or related to: (a) unauthorized, negligent or illegal use of the Products and Services, or any Customer Hardware; (b) any Customer Data provided by Customer or a User; or (c) personal injury, property damage or loss of life caused by Customer Hardware or the operation thereof or the Hardware by Customer or a User.
12.3. Rights Upon Infringement. If Customer's use of the Products and Services is, or in DroneSense’s opinion is likely to be, enjoined due to the type of infringement specified in Subsection 12.1 above, DroneSense may, at its sole option and expense: (a) procure for Customer the right to continue using the same under the terms of this Agreement; (b) replace or modify the same so that it is non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite DroneSense's commercially reasonable efforts, then DroneSense may terminate Customer’s rights and DroneSense’s obligations hereunder and refund a pro-rata portion of any pre-paid Fees paid therefore, based upon Customer's use to date.
12.4. Conditions Precedent. The indemnifying party will have no obligation under this Section as to any claim, suit, or proceeding unless: (a) the indemnified party promptly notifies the indemnifying party in writing of such claim, suit, or proceeding; (b) the indemnifying party has sole control of its defense and settlement; and (c) the indemnified party, upon request of the indemnifying party, cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom.
12.5. Sole Remedy. The provisions of this Section set forth DroneSense's sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any Intellectual Property rights of any kind.
13. SUBSCRIPTIONS, TERM AND TERMINATION.
13.1. Term. This Agreement will commence on the effective date of the initial Order and, unless terminated as set forth herein, will continue for so long as a Subscription is still in effect hereunder, including any renewal terms.
13.2. Single Year Subscriptions. A “Single Year Subscription” indicated on an Order will be for a one-year term and pricing applicable to such Single Year Subscription will be at the rate specified in the Order and shall be subject to change, in DroneSense’s sole discretion, with respect to subsequent Single Year Subscriptions.
13.3. Multi-Year Subscriptions. If Customer enters into a Subscription for a period of two or more years (a “Multi-Year Subscription”), the fees will be as set forth in the Order (“Contract Price”) and will not increase during the initial multi-year subscription period of the Multi-Year Subscription (the “Initial Subscription Term”) unless stated otherwise in the applicable Order. Renewals of a Multi-Year Subscription may be at the original Contract Price or at DroneSense’s then-current fees, as determined in DroneSense’s sole discretion. Payment for each year during the Subscription Term of a Multi-Year Subscription will be due annually on each anniversary of the date of commencement of the Subscription Term. For Multi- Year Subscriptions, the Subscription shall automatically renew at the end of the Initial Subscription Term for successive one (1) year renewal periods (each, a “Renewal Subscription Term”) (regardless of the duration of the duration of the Initial Subscription Term) unless one party notifies the other of its intention not to renew at least thirty (30) days prior to the end of the then-current Initial Subscription Term or Renewal Subscription Term. The Initial Subscription Term and all Renewal Subscription Terms, collectively, shall be the “Subscription Term” of the applicable Multi-Year Subscription.
13.4. Additional Subscriptions. At any time during a Single Year or Multi-Year Subscription, Customer may register for additional Subscriptions (“Additional Subscriptions”), subject in each case to the execution of an Order by the parties which shall, in each case, be subject to these Terms. These Terms are applicable to all Additional Subscriptions. The fees applicable to the Additional Subscriptions for customers with Single Year Subscriptions will be the then-current market subscription fee charged by DroneSense. The fees applicable to the Additional Subscriptions for customers with Multi-Year Subscriptions will be the subscription fee applicable to such customer’s existing Multi-Year Subscriptions. Additional Subscription fees will be pro-rated for the remainder of the then-current Subscription Term. For Additional Subscriptions (a) Customer will be able to use the Platform or On-Premise Offering, as applicable, for a fifteen (15)-day trial period (“Trial Period”), (b) after the Trial Period, Customer will be invoiced for the Additional Subscriptions unless DroneSense is notified by Customer in writing of Customer’s intent to terminate the Additional Subscription prior to the end of the Trial Period; and (c) such invoice is payable pursuant to Section 7 (Payment Terms). Additional Subscriptions for customers with Multi-Year Subscriptions will auto renew as set forth above for Multi-Year Subscriptions.
13.5. Termination. In the event: (a) that a party is in material breach of the terms of this Agreement and (i) does not cure such breach within thirty (30) days following notice thereof, or (ii) such breach is not curable; or (b) an emergency event necessitating termination or suspension by DroneSense occurs, then the other party may immediately suspend performance (including delivery and/or access to the applicable Platform Element, On-Premise Offering or Professional Service, in the case of DroneSense) or terminate the applicable Subscription by sending written notice to the breaching party. Unless otherwise expressly specified as applying only to a given Subscription, Customer’s obligations under this Agreement shall apply to any and all Subscriptions issued hereunder, and an uncured breach thereof shall entitle DroneSense to terminate any and all other Subscriptions and/or this Agreement. Subject to Section 6.4 of this Agreement, upon termination, Customer must retrieve its Customer Data within ninety (90) days of the date of termination, after which DroneSense will destroy the Customer Data, except for Anonymized Data. DroneSense must promptly destroy any and all Customer Data collected, maintained, created or used in the course of the performance of this Agreement, in whatever form it is maintained, at the request of the Customer, except for Anonymized Data.
13.6. Effect of Expiration or Termination. The parties’ rights and obligations which by their nature are intended to survive any termination or expiration of this Agreement shall so survive, including Sections 7 (with respect to amounts accrued or payable prior to termination), and 5.3, 5.4 and 5-14. Upon expiration or termination of this Agreement (a) all license grants contained herein shall immediately terminate and be of no further force or effect, and (b) each party shall immediately cease all use of the other party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control.
14. INSURANCE.
During the term of this Agreement and for as long as Customer operates the Hardware, Customer shall, at its own expense, maintain and carry in full force and effect a commercially reasonable amount of insurance to cover the operation of its business and the Hardware. Such insurance policies shall include DroneSense and its Affiliates, officers, directors, employees, agents, representatives, subsidiaries, successors, and assigns as additional insureds and shall provide broad form coverage. Customer will forward to DroneSense a certificate of insurance evidencing coverage upon request by DroneSense and upon any renewal of such insurance. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against DroneSense and its insurers.
15. GENERAL.
15.1. Entire Agreement. This Agreement, including the Orders and any schedules and/or attachments referenced herein or issued hereunder, constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto, or unless and except to the extent Customer accepts a subsequent click-to-accept agreement delivered by DroneSense via the Platform or its website.
15.2. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Texas. The parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable. Unless otherwise required by law, any action or legal proceeding shall be brought exclusively in a court of competent jurisdiction in Travis County, Texas and the parties hereby consent to the personal jurisdiction and venue of such courts, whether on the basis of forum non-conveniens or otherwise.
15.3. Relationship of Parties. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. DroneSense reserves the right to utilize subcontractors.
15.4. Attorneys’ Fees. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement and to the maximum extent permitted by applicable law, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
15.5. Equitable Relief. The parties agree that a material breach of this Agreement or restrictions set forth herein may cause irreparable injury to DroneSense for which monetary damages alone would not be an adequate remedy, and therefore DroneSense, to the maximum extent permitted by applicable law, shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, including a temporary and permanent injunction, without the requirement of posting bond or proving actual damages.
15.6. Force Majeure. Except for payments by Customer that are not prohibited by applicable law, neither party shall be deemed to have breached any provision of this Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, riots, terrorism, energy crises, pandemics, fires, transportation contingencies, embargos, strikes, interruptions in third-party telecommunications or Internet equipment or service, shortage or disruption in material or supply, excessive demand for product over available supply, interruption for any reason in manufacturing or other accidents or catastrophes, or any other occurrences which are beyond such party’s control whether of the class described above or not.
15.7. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer of the Products and Services, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Platform and the On-Premise Offering was developed at DroneSense’s private expense and is commercial in nature. By using or receiving the Products and Services, any Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
15.8. Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent, provided that no consent is required in connection with a merger, reorganization, consolidation, amalgamation, sale of assets, change of control, or similar transaction. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
15.9. Severability. The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of this Agreement as a whole, which will at all times remain in full force and effect.
15.10. Waiver. The failure of either party to enforce at any time the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition, or requirement.
15.11. Export Compliance. The Products and Services may be subject to export laws and regulations of the United States and other jurisdictions. DroneSense and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit anyone to access or use the Products and Services in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
15.12. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
15.13. Order of Preference. In the event of conflict between the terms in an Order and these Terms, the terms and conditions set forth in the Order shall govern with respect to the Products and Services provided under such Order. If there is a conflict between these Terms and/or any Order and any other contracts or terms incorporated by reference, the terms and conditions set forth in these Terms or the applicable Order shall take precedence.
15.14. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
15.15. Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth below or in the Order or to such other address as may be specified by either party to the other in accordance with this Section.
Revised May 12, 2025